At the outset, I think it’s critical to stress that I am strongly pro-choice. I am in favor of the status quo preserved by Roe v. Wade – that abortion is an issue to be decided between a woman and her doctor. And I believe that safe access to abortion is not only an important legal principal, but a fundamental prerequisite to broader socio-economic and gender equity.
Usually, I wouldn’t think it necessary to announce my ‘side’ so crudely, but these are treacherous political waters. Many view this debate as a matter of extreme and deeply personal importance. Accordingly, I want to stake out my political and personal position carefully.
Since Justice Samuel Alito’s draft Supreme Court opinion overturning Roe was leaked in early May, the national battle over abortion rights has taken on a new desperation. Pro-lifers delight, feeling closer than ever before to a historic victory. Pro-choicers rage, frantically throwing up whatever political defenses they can to hold the line. With the midterm elections fast approaching, abortion is unlikely to be the top issue, as inflation, gas prices, and COVID continue to dominate voters’ concerns. But the fate of Roe is certainly one of the biggest issues heading into this election cycle.
Prompted by the headlines, I’ve gradually come to an unexpected opinion, first expressed in an argument with my passionately pro-choice father: maybe we should indeed overturn Roe v. Wade.
Given my stance on abortion, these words feel almost blasphemous. Before the leak, I certainly never thought I would take such a stance. But now I can’t get the idea out of my head. Now, I feel an earnest need to confess, articulate, and defend my blasphemy.
As I see it, there are three main reasons why overturning Roe is in the national, and pro-choice, interest.
Firstly, basing the right to abortion in a Supreme Court decision, rather than in congressional law, has aggravated political energies and deepened national division over the issue. This is because of the uniquely fragile nature of judicial law, whereby a simple 5-4 majority can overturn even long-accepted precedents. Indeed, so long as we rely on judicial rulings to protect abortion access, pro-life activists will always have a realistic shot at overturning said protections – all they need to do is get five willing justices on the bench.
This mentality of achievability (and, from a pro-choice perspective, vulnerability) has rendered abortion a permanent political battlefield. Alito makes this exact point in his draft, noting that Roe has “sparked a national controversy that has embittered our political the culture for a half-century.” Love him or hate him, this is a fair point. Furthermore, it is reasonable to acknowledge, as Alito does, that there is widespread disagreement about the constitutionality of the initial decision. Even Justice Ruth Bader Ginsburg, the late liberal hero and defender of a woman’s right to choose, believed that Roe was a faulty legal decision, and “that [with Roe] the court gave the anti-abortion forces a single target to aim at.” She also argued that it would have been better to guarantee abortion access using an equal rights argument, rather than presenting it as an issue of privacy (which is what Roe v. Wade does).
In turn, the battle over abortion has come to consume the judicial appointment process. For years now, judges and justices have been grilled on this single issue, regardless of all other qualifications and opinions they may hold. Abortion has become a crude litmus test, dominating and sometimes even obscuring the process by which government picks wise judges. And while overturning Roe won’t suddenly make Supreme Court nominations apolitical, it might go a long way towards making the process less toxic because it will remove the primary object of activists’ and lobbyists’ concern. There are many other more important legal matters that the court has to contend with and that potential justices should be questioned on (such as campaign finance, privacy, and gun control). Personally, I long for the day when we don’t have to spend hours grilling nominees on what should be a non-issue.
Secondly, overturning Roe would put pressure on Congress to pass some national pro-choice bill, because broad swaths of Americans agree with the status quo, believing that a woman should have the right to choose. Gallup finds that 85% of Americans think that abortion should be legal under any circumstances or in some circumstances, and that 55% consider themselves pro-choice (as opposed to 39% as pro-life). Pew’s most recent polling shows that “61% say abortion should be legal in all or most cases, while 37% say it should be illegal in all or most cases.”
In other words, if abortion rights were suddenly made a legislative issue in the wake of an Alito-esque decision, the pro-choice side has a good chance of winning. In his draft, even Alito himself seems to acknowledge that the protections stipulated by Roe would be on sound footing if passed as a legislative statute instead of as a constitutional right:
The opinion concluded with a numbered set of rules much like those that ‘might be found in a statute enacted by a legislature. […] One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave almost no sense of an obligation to try to be.”
It wouldn’t happen quickly, and because of the structure of the Senate it would be difficult to overcome the power of a committed pro-life minority. But with the right messaging and sound strategy, Democrats could turn this into a winning issue, hammering Republicans on abortion access until enough of them cave and vote in favor of some kind of pro-choice bill. It’s simple politics; these days, the GOP is desperate for support among suburban women, a group which is generally very pro-choice, especially in swing states.
This is part of a broader point that a legislative solution will always be more durable than a judicial one. If overturning Roe activates strong opposition among the 60% or more of Americans who support abortion access, thereby pushing Congress into passing a sweeping pro-choice bill, then the issue will well and truly be put to bed. Especially in our polarized times, congressional law is almost impossible to overturn, and pro-life activists will have nowhere else to go with their grievances.
Alito’s draft includes this line: “it is time to heed the Constitution and return the issue of abortion to the people's elected representatives.” My response? Game on. It might be scary and risky to open up one more legislative battlefront, but this is a battle that can be won, if only we have the courage to try.
The third and final reason is by far the most important: Roe isn’t working. In the United States today, access to abortion is not equal, often not without undue burden, and certainly not universal. Sure, in most states abortion is secure and widely available. But if a fundamental right isn’t guaranteed nation-wide, what is it worth? How can we pretend that simply upholding Roe will end all our problems? Alito also mentions this point in his draft:
Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.
Again, I hate to agree with the guy, but he is right. We can argue over how democratically representative these twenty-six states are, but thanks in part to the vagaries surrounding Roe, pro-life activists and politicians in states like Texas, Oklahoma, and Mississippi have been able to chip away at abortion rights. Today, millions of American women have practically no access to abortion at all. And we can’t keep pointing to the Constitution, pretending that it takes an unambiguous pro-choice stance on the issue. On this and many other issues, the Constitution alone isn’t really helpful. That shouldn’t stop us from doing the right thing and guaranteeing by statute something that most Americans think should be guaranteed.
Believe me, it is upsetting that we have to have this conversation at all in 2022. And if Roe is overturned, the way forward will be painful and difficult. Overturning Roe won’t make abortion illegal nation-wide, it will simply leave it to the states to decide. In all likelihood, liberal states will be pro-choice, conservative states will be pro-life. Accordingly, in the short term, women in conservative states will likely lose their access to abortion. That is a tragedy.
But for the long-term guarantee of a woman’s right to choose, not just in California or Rhode Island but in all fifty states, Congress has to act. The Supreme Court has not fixed and cannot fix this problem, and there is no higher authority we can turn to, no deus ex machina that will save us.
I know, I know – placing all our hopes in Congress is a disturbing prospect. But we have to try. If not to take a stand on these kinds of entrenched disagreements, if not to protect those who have been abused, and if not to secure those rights demanded by a fair and equitable society, why have a government at all?